“…learned counsel for the respondent urged that the appeal be dismissed with substantial costs. This is the first time I will read such a thing in a brief of argument dealing [with] a criminal matter. Learned counsel should know better. The rules of the court did not touch on same. It is unheard of and should not be repeated”.

Where an accused person is charged under a wrong law, the trial and conviction will still stand provided the offence for which he was charged was an existing offence under an existing law:

“For emphasis, no matter how defective the section of law or even the legislation itself is, an accused cannot be heard to say that because he was charged under a wrong law, the infraction upon which he is held is covered by an existing law, the prosecution and conviction will stand based on the proper law different from that under which he has taken plea. That is the law and the appellant is not in a position to change it”.

Blogger’s Note:

The important line in the above reasoning of Peter-Odili, JSC is ‘…the infraction upon which he is held is covered by an existing law’.That is to say, so long as the defendant’s actions constitute a crime under an existing law, the requirement of the Constitution is satisfied. According to section 36(12) of the 1999 Constitution (as amended) an accused person can only be charged under a written law.

“…the issuance of a writ of summons…under undefended list procedure cannot precede the order of court so to do. In other words, contrary to the misconception of the appellant, even though the writ of summons is issued by the Registrar, he cannot issue one before the court so orders. It is a judicial function that cannot be delegated to an officer… Such a writ of summons that was issued before judicial decision so to do, upon consideration of an application becomes incompetent and will ordinarily rob the trial court of its competence to try the matter. It is like a notice of appeal, which requires leave before being filed, to be filed without leave of court, it shall be incompetent and be so declared by the court as a nullity… Writ of summons therefore being an originating process must be initiated properly to enable the court assume jurisdiction over the matter.”

“It ought to be mentioned that no court has the power to stop the investigative powers of the Police or EFCC or any agency established under our laws to investigate crimes where there is reasonable suspicion of commission of a crime or ample evidence of commission of an offence by a suspect.”

Blogger’s Note:

The Police, EFCC or other law enforcement agencies ought to be allowed to do their jobs of properly investigating crimes. However, the point must be made that every investigation must be carried out under due process with regard to the rule of law and constitutionally guaranteed fundamental rights. For instance, the Nigerian Department of State Security Services (DSS) recently carried out what they termed ‘sting’ operations against alleged corrupt Judges and Justices without following due process. The National Judicial Council decried the incident.

“…It [is] unethical and quite contrary to the Rules of Professional Conduct in the Legal Profession for… counsel to have filed the motion and also at the same time pose as a vital witness in the affidavit in support of the case of his client…”

Blogger’s Note:

The proper thing to do is to use the litigant (or duly authorised representative) as deponent or other staff in counsel’s office such as a litigation officer seized with the facts of the case.

Madu v. Okeke [1998] 5 NWLR (Pt. 548) 159 at 164, per Tobi, JCA (as he then was and now of blessed memory):

“…it is now a fashion for younger counsel to ask for adjournment on the ground that a more senior colleague would like to do the matter “personally”. Frankly, I do not know what this is all about…”

Blogger’s Note:

Unfortunately, this is still the trend till date. Some experienced principals lack the confidence to allow younger associates to conduct the matter themselves. On the other hand, some younger associates are too timid and afraid to take responsibility and handle these matters. It could also be a delay tactics employed by some lawyers. More so, some principals send these younger colleagues to court out of respect instead of writing letter for adjournment. Nevertheless, it is better to write a letter for adjournment than send a younger associate (like a mail courier) to simply appear and ask for an adjournment.

“…The terms “general” and “special” damages are normally inapt in the categorization of damages for the purposes of awards in cases of breach of contract. We have had occasion to point out before and we make the point that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated… Assessment of damages for breach of contract “is restitutio in integrum – that is, so far as the damages are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. The principle is not restitutio in opulentiam – giving him a windfall”.

Blogger’s Note:

The Court of Appeal rightly relied on the Supreme Court case of Okongwu v. NNPC [1989] 4 NWLR (Pt. 115) 296 at 315while discountenancing the earlier Court of Appeal cases to the contrary.

“A need to reiterate a rather trite point is that a party or counsel on his behalf has to be up and doing in canvassing what relief they seek. Therefore a party must move the court on each prayer or relief and any such prayer or prayers that are left unattended would be taken by the court as abandoned. The court cannot on its own get into such an abandoned relief to grant or even make comments thereon. This is because the duty of the court is streamlined and must be carried out with the jurisdiction to entertain whatever has been presented before him or assumed to have been so presented.”

Per Ngwuta, JSC at p. 533 para. E:

“From the record, not only did the learned counsel fail to mention the second relief but she actually failed to move the court. It would have been different if the learned counsel had asked the court to grant the reliefs in the motion paper or had moved in terms of the motion paper”.

Blogger’s Note:

While we appreciate the reasoning of the Court in the above case, we advocate that in this age of written submissions, once a motion has been filed and moved in open court, the court should deem it that all the reliefs counsel was praying for has been made known on the face of the motion paper and should be countenanced.